Bayit Yehudi (Jewish Home) chairman Naftali Bennett’s statement that he would
not obey an order to expel Jews from their homes, the criticism it engendered
and his subsequent retraction comprised only the latest example of how, seven
years later, the disengagement from Gaza continues to cast a shadow over our
That it still haunts us is appropriate considering what it
was: the forcible transfer of thousands of people, in which only Jews – by
nature of the plan’s goals – were targeted.
Though the Supreme Court did
not strike down the plan, it found that it “infringe[d] the human dignity of
evacuated Israelis” in a number of ways, violating their property rights and
their right to build their lives where they choose, and destroying their
communities, businesses and professional livelihoods, in short, their entire way
Putting aside the mortal dangers it posed (all of which and even
more have since been realized) the disengagement also sought to answer the most
divisive issue our nation faces – setting the final boundaries of the state – a
constitutional matter which even the Constituent Assembly, Israel’s first and
only constitutional convention, deemed too controversial to decide
DESPITE THE enormity of the violations, the controversy surrounding
it and the lasting impact it would have, the disengagement was a relatively easy
thing for then-prime minister Ariel Sharon to accomplish.
presented its plan, the Knesset approved and the judiciary allowed it be
executed. And even that outline makes the process seem more rigorous than it
was. In the end, it was a simple matter of majority rule.
the Knesset could have disapproved a prime minister’s initiative, but in a
parliamentary system, this is unlikely.
The government represents a
majority of parliament and the cabinet is comprised of that coalition’s most
Israel’s proportional system makes Knesset opposition
further unfeasible: Even if some coalition members disapprove, in the fractured
political landscape produced by the electoral system, allies can always be found
outside the coalition. And, as the public does not choose members of Knesset,
but only a prepared slate of candidates, MKs are first and foremost accountable
to party bodies that set the slate, over which the party chairman typically has
The court and Israel’s “bill of rights” also proved
no bulwark against the will of the cabinet-parliamentary majority. Though the
plan violated rights protected by Basic Law: Human Dignity and Liberty and Basic
Law: Freedom of Occupation, it was held to meet the laws’ requirement as “a law
befitting the values of the State of Israel, enacted for a proper purpose, and
to an extent no greater than is required.”
The disengagement had been
approved by the Knesset in law and the court simply deferred to the
government/Knesset’s judgment on all the other parts of the
This was a highly deferential ruling. Even a court less willing
to interfere in political judgments than Israel’s supreme court could easily
have found that no legitimate interpretation of what “befit[s] the values of the
State” or was for “a proper purpose,” could allow a mass expulsion, especially
when the Basic Laws say that they seek to establish the “values of... a Jewish
and democratic state” and cite the “spirit of the principles” in the Declaration
That document lauds Jewish settlement of the country,
and says the state “will foster the development of the country for the benefit
of all its inhabitants,” and “ensure complete equality of social and political
rights to all.”
The court could also have held that far more people were
uprooted than necessary to achieve the plan’s core goals (violating the “to an
extent no greater than is required” clause). It was not necessary, for example,
to destroy communities in the Shomron region to reduce friction with
Palestinians in Gaza (the inclusion of the Shomron communities was due to a
request by the US).
But such a finding was not possible with a court
which has become ideologically inbred after decades of being chosen by a
committee in which the court itself has a plurality and representatives of the
government and the Knesset comprise a minority.
The fact that only one
member of the court voted against the plan is evidence of just how lopsided the
court has become.
CONTRAST Israel’s governmental structure with the
American form of government, where a law must pass through two separate
legislative houses, the president, and in which the members of each body are
elected by different constituent groups, for different term lengths, and not
always at the same time.
Each body has unique powers, making it more
powerful in certain spheres, and each has some power over the other. Then there
is the Supreme Court, whose members are chosen by the president and the Senate
to life terms. As Madison wrote prior to the Constitution’s adoption, it is a
system of checks and balances with the goal of making “[a]mbition...counteract
The Framers considered the system of government itself to be
sufficient protection against governmental-majority tyranny, even without a bill
of rights – something only adopted following the ratification of the
And it is not only the US. Many other Western countries
also employ similar principles to protect individual rights and ensure sound
Whether or not the disengagement would necessarily have been
defeated in a system with real checks and balances, its passage would have been
much more difficult.
The mere existence of such obstacles may have
prevented the Plan from gaining momentum or deterred Sharon from raising it at
all; or it might have resulted in a much more scaled-back proposal.
years, members of the Israeli Right has complained about bias in the courts, how
“no matter who you vote for you get Shimon Peres,” the open corruption and
dishonesty used to garner Knesset majorities for dangerous policies, and how
Israeli government seems unresponsive to mass protests and other forms of
political action. They point to the disengagement as a prime example of the
Instead of complaining or contemplating the morality of obeying
or disobeying orders, those who recognized the disengagement as the act of
despotism it was ought to consider how our form of government affects the
policies which are adopted and how it should be changed to ensure that a plan
that pits soldiers against thousands of their countrymen is never approved
again.The author is a candidate on the Likud-Beytenu list.
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